IN THE SUPREME COURT OF THE
STATE OF WASHINGTON
MARILOU RICKERT v. STATE OF WASHINGTON, PUBLIC DISCLOSURE COMMISSION Filed October 4, 2007 J.M. JOHNSON, J.In 119 Vote No! Committee, this court struck down former RCW 42.17.530(1)(a) (1988). That version of the statute prohibited any person from sponsoring, with actual malice, a political advertisement containing a false statement of material fact. The legislature subsequently amended the statute to proscribe sponsoring, with actual malice, a political advertisement containing a false statement of material fact about a candidate for public office.... The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment. Because RCW 42.17.530(1)(a) rests on the validity of this erroneous assumption, it must be struck down. Facts and Procedural History In 2002, Ms. Rickert challenged incumbent Senator Tim Sheldon in the election for state senator from Washington's 35th Legislative District. During the campaign, Ms. Rickert sponsored a mailing that included a brochure comparing her positions to those of Senator Sheldon. In part, the brochure stated that Ms. Rickert supports social services for the most vulnerable of the state's citizens.By way of comparison, the brochure stated that Senator Sheldon "voted to close a facility for the developmentally challenged in his district." In response to the latter statement, Senator Sheldon filed a complaint with the Public Disclosure Commission (PDC), alleging a violation of RCW 42.17.530(1)(a). RCW 42.17.530(1) provides, in relevant part: It is a violation of this chapter for a person to sponsor with actual malice: (a) Political advertising or an electioneering communication that contains a false statement of material fact about a candidate for public office. However, this subsection does not apply to statements made by a candidate about the candidate himself or herself.... The PDC held a hearing regarding Senator Sheldon's complaint on July 29, 2003, months after Senator Sheldon handily defeated Ms. Rickert in the 2002 election. The PDC found that Ms. Rickert's brochure contained two false statements: (a) Senator Sheldon voted to close the Mission Creek Youth Camp, and (b) . . . Mission Creek was a facility for the developmentally challenged. Additionally, the PDC concluded that the statements were material, that Ms. Rickert sponsored the brochure with actual malice, and that her violation of RCW 42.17.530(1)(a) had been established by clear and convincing evidence. The PDC imposed a $1,000 penalty on Ms. Rickert.... RCW 42.17.530(1)(a) extends to protected speech, hence, strict scrutiny applies. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Such political speech is at the core of our First Amendment freedoms.... The text of RCW 42.17.530(1)(a) suggests that the legislature may have intended to limit the scope of its prohibition to the unprotected category of political defamation speech identified by the United States Supreme Court in New York Times Co. v. Sullivan (1964). However, under New York Times, only defamatory statements . . . are not constitutionally protected speech. Because RCW 42.17.530(1)(a) does not require proof of the defamatory nature of the statements it prohibits, its reach is not limited to the very narrow category of unprotected speech identified in New York Times and its progeny. RCW 42.17.530(1)(a) cannot survive strict scrutiny. Protecting candidates is not a compelling government interest here, and RCW 42.17.530(1)(a) is not narrowly tailored to further that interest. The plain language of RCW 42.17.530(1)(a) provides that the law's purpose is "to provide protection for candidates for public office." Legislators apparently concluded this was a sufficient state interest to support the statute.... That a State possesses an independent right to determine truth and falsity in political debate is a proposition fundamentally at odds with the principles embodied in the First Amendment. Moreover, it naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech. Yet, political speech is usually as much opinion as fact. As aptly summarized by the Supreme Court, "[E]very person must be his own watchman for truth, because the forefathers did not trust any government to separate the truth from the false for us." Particularly relevant here is the fundamental First Amendment principle forbidding censorship or coerced silence in the context of political debate. The First Amendment exists precisely to protect against laws . . . which suppress ideas and inhibit free discussion of governmental affairs....There simply cannot be any legitimate, let alone compelling, interest in permitting government censors to vet and penalize political speech about issues or individual candidates. The Supreme Court has recognized a legitimate, and at times compelling, interest in "compensating private individuals for wrongful injury to reputation." Gertz v. Robert Welsh (1974). However, this interest cannot justify a government-enforced censorship scheme like RCW 42.17.530(1)(a). Enforcement of RCW 42.17.530(1)(a) has nothing to do with "compensating private individuals for wrongful injury to reputation." The statute may protect candidates from criticism, but it has no mechanism for compensation for damage to reputations. More importantly, there is no requirement that the statements subject to sanction under RCW 42.17.530(1)(a) be of the kind that tend to cause harm to an individual's reputation. In sum, the interest asserted by the legislature, protecting political candidates (including themselves),is not a compelling interest in support of RCW 42.17.530(1)(a). Accordingly, the statute fails under strict scrutiny.... Preserving the integrity of elections is not a compelling government interest here, and RCW 42.17.530(1)(a) is not narrowly tailored to further that interest. At argument below and before this court, the PDC suggests that preserving the integrity of the election process is the primary government interest furthered by RCW 42.17.530(1)(a). However, this was not the interest asserted by the legislature in enacting RCW 42.17.530(1)(a). Under strict scrutiny, a law burdening speech may not be upheld for any conceivable purpose but must be evaluated according to its actual purpose. Thus, it is arguably inappropriate to even consider the PDC's argument based on this belated, alternative interest. Even assuming it were proper to consider a state interest asserted for the first time at argument, the PDC's claim still fails. The government may have a compelling interest in preventing direct harm to elections. However, that interest is not advanced in any significant manner by prosecuting Ms. Rickert, and other similarly situated individuals, under RCW 42.17.530(1)(a). Rather, the PDC's claim that it must prohibit arguably false, but nondefamatory, statements about political candidates to save our elections conflicts with the fundamental principles of the First Amendment. Therefore, preserving the integrity of the election process cannot be deemed a compelling interest in the context of a scheme like RCW 42.17.530(1)(a). Furthermore, even if such an interest were valid, RCW 42.17.530(1)(a) would remain unconstitutional because it is not narrowly tailored. The statute is underinclusive because it does not apply to many statements that pose an equal threat to the State's alleged interest in protecting elections. Specifically, the statute exempts all statements made by a candidate (or his supporters) about himself. Basically, a candidate is free to lie about himself, while an opponent will be sanctioned. Yet, the PDC presents no compelling reason why a candidate would be less likely to deceive the electorate on matters concerning him- or herself and [thus] compromise the integrity of the elections process.... |